PBPA sues over lesser prairie chicken listing

By Mella McEwen | mmcewen@mrt.com

Published 2:30 pm, Tuesday, June 10, 2014

Photo: Texas Parks and Wildlife Department

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FILE - This March 2007 file photo provided by the Texas Parks and Wildlife Department shows a male lesser prairie chicken in a mating stature in the Texas panhandle. A first-of-its-kind agreement between federal agencies is designed to ease the concerns of landowners and the energy industry in five states ahead of an expected listing of the lesser prairie chicken as threatened, a move that could curtail their ability to operate in those habitats. (AP Photo/Texas Parks and Wildlife Department, Jon McRoberts, File)

FILE - This March 2007 file photo provided by the Texas Parks and Wildlife Department shows a male lesser prairie chicken in a mating stature in the Texas panhandle. A first-of-its-kind agreement between

Just weeks after the U.S. Fish and Wildlife Service listed the lesser prairie chicken as “threatened,” a lawsuit has been filed seeking to overturn that decision.

The Permian Basin Petroleum Association filed the lawsuit late Monday in the U.S. District Court for the Western District of Texas, Midland-Odessa Division. Co-plaintiffs in the case are Chaves, Eddy, Lea and Roosevelt counties in New Mexico. Defendants include the Department of the Interior and Interior Secretary Sally Jewell and the Fish and Wildlife Services and its director, Dan Ashe.

The lawsuit alleges the U.S. Department of the Interior and the service violated federal law in listing the animal. Also alleged in the lawsuit is that the service violated the Administrative Procedure Act and failed to consider the benefits of conservation efforts already undertaken across the five states that comprise the bird’s habitat to improve its habitat and diminish threats.

“We feel the Fish and Wildlife Service erred in their decision and didn’t properly consider all the information before them nor did they follow procedures in making their decision,” said Ben Shepperd, PBPA president. “We want a fair hearing in court that we felt we didn’t get from the service.”

A spokeswoman for the service said the agency does not comment on pending or ongoing litigation.

“The Fish and Wildlife Service’s decision to list the lesser prairie chicken as threatened under the Endangered Species Act with a special rule reflects both the urgent need to protect this rapidly declining species and the unique and ongoing role states and landowners play in its conservation,” the spokeswoman said. “We look forward to working cooperatively with all partners as we progress toward recovery.”

Shepperd said the lawsuit could potentially affect the entire habitat across five states: Texas, New Mexico, Oklahoma, Kansas and Colorado.

While the four southeastern New Mexico counties agreed to be the first plaintiffs, he said others could join the lawsuit in the future.

“We felt we needed to file the lawsuit as quickly as possible. (T)hese four counties agreed with us and feel the decision to sue is justified because of the harm the listing could do, not just to oil and gas operations but ranching and farming activities.”

Ironically, while the PBPA is suing the Fish and Wildlife Service over the lesser prairie chicken listing, it is also supporting the service in a lawsuit over its decision last year to not list the dunes sagebrush lizard as endangered. Shepperd said the association is acting as an intervenor for the service, which has been sued by Defenders of Wildlife and the Center for Biological Diversity in an effort to have the lizard listed as endangered.

“We support the difficult job the Fish and Wildlife Service has,” he said. “But they erred in the lesser prairie chicken decision. This is an extremely important issue to the PBPA and its members.”